Too many Indigenous women are in prison—but sentencing flexibility will help

Posted
June 8, 2018
Article Source
Macleans Magazine

From an opinion piece in Macleans: Patricia M. Barkaskas is the academic director of the Indigenous Community Legal Clinic at the Peter A. Allard School of Law at the University of British Columbia. Emma Cunliffe is an associate professor in the Peter A. Allard School of Law at the University of British Columbia. Both are expert advisors with EvidenceNetwork.ca.

There is no justice for Indigenous women in the current Canadian justice system.

Indigenous women are violently victimized at almost three times the rate of their non-Indigenous counterparts. Indigenous women are also more likely to commit criminal offences—but nine times more likely than non-Indigenous women to be sentenced to prison.

Independent Sen. Kim Pate recently announced her intention to introduce a private member's bill that would grant Canadian judges the power to impose an appropriate sentence for any offence, regardless of whether the offence carries a mandatory minimum sentence of imprisonment. An appropriate sentence reflects the seriousness of the offence committed and the offender's degree of responsibility. But it also takes into account the circumstances in which someone has committed a crime.

Judges already have the power to impose a more severe sentence than the mandatory minimum. This bill would allow them to impose a lesser sentence than the usual minimum in appropriate circumstances.

Adopting an evidence-based approach to sentencing reform makes sense for all actors within the Canadian criminal legal system. However, it is an urgent imperative for Indigenous women. For them in particular, a mandatory minimum sentence is often a systemic response to an offence committed in the context of extreme poverty, violent victimization or fear of state apprehension of children. Indigenous women's experiences of racism and colonial violence are "risk factors" that lead some to commit criminal acts.

Mandatory minimum sentences remove judicial discretion to account for these circumstances in sentencing. Worse, they have a disproportionately harsh impact on Indigenous women as judges are unable to craft sentences that reflect the circumstances in which Indigenous women offend.

The proportion and number of Indigenous women in Canadian prisons has grown rapidly as the use of mandatory minimum sentences has proliferated.

Read more: Too many Indigenous women are in prison—but sentencing flexibility will help